Disposed

Aslam Umer Ghojaria v. Mistry Govind and Brothers and Ors.

Bombay HC29 Jan 2013WP/8174/2012

Case brief

AI extract

What is this about?

High Court set aside lower appellate court order allowing joinder of co-heirs as additional appellants in pending rent control appeal. Directed impleading respondents as party-respondents with provision for transposition if compromise occurs without their consent.

What did the court decide?

Order of trial court allowing joinder set aside; respondents impleaded as party-respondents to pending appeal; respondent-transposition allowed if compromise without consent.

Aslam Umer Ghojaria Vs Mistry Govind and… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8174 OF 2012

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Aslam Umer Ghojaria .. Petitioner Versus Mistry Govind & Brothers & Anr. .. Respondents

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Mr.A.A.Pande i/b.A.R.Pande for petitioner Mr.P.K.Dhakephalkar, Senior Advocate with Mr.Vaibhav Mehta and Ms.Deepti Mistry i/b. Vaibhav Mehta & Associates for respondent Nos.1 and 2.

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CORAM : S. C. DHARMADHIKARI, J. 29^th January 2013.

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P.C.:

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1] This petition under Article 227 of the Constitution of

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India, is directed against the order passed by the lower appellate court dated 12^th July 2012 below Exh.9 in Appeal No.448 of 2005. By that order what the lower appellate court

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has done is to allow the application which has been preferred by two applicants viz., Mukhtar and Zaiban and they have been

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directed to be impleaded as or added as appellants in Appeal

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No.448 of 2005.

2] It is common knowledge that a suit for eviction of the tenant Mistry Govind and Brothers was filed in the trial court being R.A.E.Suit No.600/1035 of 2002. The trial court after recording evidence and hearing parties proceeded to dismiss the suit by its judgement and decree dated 8^th April 2005.

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3] The grievance is that it is only petitioner’s father who challenged the dismissal of the suit by filing appeal No.448 of 2005 before the appellate bench of Court of Small Causes, Bombay.

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4] That appeal is still pending. During the pendency of the appeal, the original appellant/ plaintiff Umar Ghojaria, father of the petitioner and equally of the respondent Nos. 2 and 3 expired. The petitioner made an application for substituting himself as appellant. That application was allowed and the

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petitioner was substituted as sole appellant.

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5] Now it appears that the respondent No.2 to this petition,

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made an application on 25^th August 2011 that he and his sister Zainab respondent No.3 to this petition be added as appellants as the deceased father is not survived only by the petitioner as

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the only heir but equally they also have right in the property. Their apprehension was that the suit may be compromised by the petitioner with respondent No.1 original defendant and, thereafter, these respondent Nos. 2 and 3 who are the applicants may not be in a position to assert their right, title and interest as the heir of the deceased.

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6] The petitioner has strongly objected to this application for

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joinder or addition but the trial court has allowed that application.

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7] At the hearing of this petition, I put it to Mr.Pande

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appearing for petitioner as to how the petitioner is benefitted by this inter se disputes and differences as the respondent No.1 original defendant continues to occupy and use the premises.

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The suit filed for his eviction in the year 2002 was dismissed and equally, now the appeal is pending from 2005 and this benefits only him and none else.

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8] After some arguments, both Mr.Pande and

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Mr.Dhakephalkar, learned Senior Counsel for respondents have agreed that without prejudice to their respective rights and contentions of parties, the petitioner will implead respondent

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Nos. 2 and 3 to this petition as party respondents to the appeal being Appeal No.448 of 2005. The order of the trial court, impugned herein, to stand set aside and substituted by this direction. The petitioner to carry out amendments within two

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weeks from today. The lower appellate court to then proceed with the appeal and dispose it of as expeditiously as possible, since it is pending from 2005 by giving it due priority. The

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apprehension of respondent Nos. 2 and 3 to this petition can be taken care of by directing that in the event the petitioner original appellant enters into any compromise with the original defendant respondent No.1 herein, the lower appellate court shall consider the request of respondent Nos. 2 and 3 for transposing them as appellants, if they do not desire to become party to the compromise or consent terms in any manner. Keeping open all such courses and contentions therein and equally on the merits of the appeal so also rights of the parties to the immovable property, this petition is disposed of.

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(S. C. DHARMADHIKARI, J)

Aslam Umer Ghojaria v. Mistry Govind and Brothers and Ors.

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Aslam Umer Ghojaria v. Mistry Govind and Brothers and Ors.

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